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The article examines the decision of the U.S. Supreme Court in Weinberger v. Romero-Barcelo, taking into account the statutory background of the Federal Water Pollution Control Act (FWPCA) and case law concerning federal court exercise of equitable discretion. It ends that the text and legislative history of the Act require that a permit should be obtained before the discharge of pollutants into navigable water.

The article focuses on the decision of U.S. Court of Appeal for the District of Columbia in the case Union Neighbors United, Inc. v. Jewell which held that the U.S. Fish and Wildlife Service (FWS) met its obligations under the Endangered Species Act (ESA) but failed to comply with the National Environmental Policy Act (NEPA). It mentions Incidental Take Permit (1TP) for the endangered Indiana bat and particular project posed a threat to an endangered species.

For nearly forty years, the Environmental Protection Agency (EPA) and Army Corps' of Engineers have relied heavily on administrative compliance orders to enforce the Clean Water Act (CWA). The Supreme Court's decision in Sackett v. Environmental Protection Agency will likely affect drastic changes in this traditional enforcement strategy. Contrary to the unanimous consensus of federal courts, Sackett decided that compliance orders issued by the EPA under the CWA are subject to judicial review on the underlying question of jurisdiction even before EPA brings an enforcement action. Even this narrow holding is a dramatic departure from decades of CWA enforcement. Moreover, it is unclear from Sackett whether the opinion's effect will remain so narrow or whether every compliance order issued by the Agency under the CWA faces the specter of pre-enforcement judicial review. This Note argues that federal courts should take a narrow reading of Sackett and limit pre-enforcement judicial review of compliance orders to the special issue of establishing CWA jurisdiction. Only a narrow interpretation of Sackett will allow federal courts to avoid the unfortunate ecological consequences of the Court's hostility to water quality regulation. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Ninth Circuit Court case Alliance for the Wild Rockies v. Cottrell, wherein the district court's denial of the plaintiff's, Alliance for the Wild Rockies (AWR), motion for a preliminary injunction under the U.S. National Environmental Policy Act of 1969 (NEPA) was overturned. It also reflects on the case Winter v. Natural Resources Defense Council, wherein the district court held that AWR had not shown the requisite likelihood of irreparable injury.

How should courts balance conflicting national security and environmental protection interests? The Supreme Court gave a fact-specific answer in Winter v. Natural Resources Defense Council, finding that the interests of the military outweighed the interests of environmental plaintiffs in this case. Winter is hardly revolutionary--courts have long balanced competing interests when determining equitable relief and that is precisely what the Court did in Winter, based on the unique circumstances presented. The Supreme Court gave greater deference to military commanders than the lower courts in reviewing a preliminary injunction issued to remedy the Navy's failure to prepare an environmental impact statement pursuant to the National Environmental Policy Act (NEPA). In doing so, the Winter Court substituted its own judgment regarding the public interest among competing national priorities and unmoored itself from traditional standards of appellate review. While saying very little about the underlying merits of the case, the Court majority held that the district court abused its discretion, and on that basis it vacated two of six mitigation measures imposed under the preliminary injunction. [ABSTRACT FROM AUTHOR]

Numerous laws direct federal land management agencies to consider the impact of their decisions on sites sacred to American Indians. These laws require agencies to consult with tribes and practitioners in order to locate sacred sites and understand how land use affects them. But for a variety of religious, historical, and practical reasons, tribes and individual practitioners hesitate to disclose this information to federal land managers. As a result, agencies find themselves directed to protect sacred sites but unable to get relevant information from the people who possess it. Meanwhile, practitioners question the value of federal laws requiring sacred site consultation when such consultation may violate their religious beliefs and expose their sacred sites to overuse and misuse. To reduce the communication barrier, land management agencies may promise confidentiality to those with sacred site information. But once in an agency `s possession, the information may be subject to disclosure if it is requested under the Freedom of Information Act, or if the National Environmental Policy Act requires it to be included in a publicly available analysis. This Comment explores this interaction between the Freedom of Information Act, the National Environmental Policy Act, and land management laws favoring tribal consultation, and analyzes the degree of confidentiality agencies can promise those with sacred site information. It analyzes options for agencies and tribes, and concludes a legislative solution would be both beneficial and appropriate. [ABSTRACT FROM AUTHOR]

As national security issues have become increasingly more important and urgent in the United States, the imprint of national security has correspondingly grown more apparent on the landscape of environmental regulation. This Note examines how enforcement of the National Environmental Policy Act (NEPA) is at risk of being compromised by the encroachment of national security concerns. The Ninth Circuit's recent ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission considered whether NEPA requires the Nuclear Regulatory Commission (NRC) to evaluate, in an Environmental Impact Statement (EIS), the potential of a terrorist attack on a proposed storage facility for nuclear material. The NRC claimed that it was not appropriate to address sensitive national security information in an EIS—a public document. The court, in keeping with Supreme Court precedent, ruled against the NRC and refused to waive NEPA's requirements even though the federal action dealt with classified subject matter. Nonetheless, the court did not provide clear guidelines on how NEPA should be applied in order to resolve the tension between security issues and NEPA's goal of public involvement in environmental decisionmaking. This Note considers that tension and attempts to provide a solution by advocating for the use of a special congressional oversight committee and in camera judicial review of classified NEPA proceedings. By establishing an official procedure for overseeing and reviewing classified NEPA proceedings, Congress can ensure that agencies will not be allowed to undermine NEPA's purposes in the name of national security. [ABSTRACT FROM AUTHOR]

The article discusses the Property Rights Movement's (PRM) involvement in intellectual property issues, including a patent infringement suit between the Internet auctioning companies eBay and MercExchange. MercExchange was attempting to enjoin eBay from using a method of selling products through electronic consignment stores which MercExchange claimed to own a patent on. When the injunction was appealed by eBay to the Supreme Court, Richard Epstein, a theorist with PRM, equated the patent with real estate and suggested it deserved equal legal protection as property. The article discusses whether property rights issues and intellectual property protection will become entwined.

This article offers a cultural interpretation of the decisions by the U.S. Supreme Court in environmental cases, analyzes some of its major environmental decisions of the last three decades in light of beliefs and values commonly associated with environmentalism. In doctrinally diverse cases, the court rejected interpretations that would have integrated beliefs and values of the National Environmental Policy in favor of interpretations that reasserted opposing beliefs and values of the Democratic Socialist Party. Changes in the personnel of the court may explain the move away from the early enthusiasm to a much more qualified stance by the court. But this move may also represent a natural progression in the response by the court to an emerging social movement.

This Note explores the significance of the Supreme Court's 2004 decision in Department of Transportation v. Public Citizen, commonly referred to as "The Mexican Trucking Case." The case drew attention as an example of the tension between trade liberalization and environmental protection. The Supreme Court's decision interprets the National Environmental Policy Act of 1969 (NEPA) and the Clean Air Act as not requiring environmental review of the consequences of opening American borders to the Mexican fleet of trucks and buses, which is older and more polluting than the American fleet. This Note explores the consequences of the judiciary's continuing hostility toward NEPA and the growing irrelevance of NEPA in an era of increased international trade. NEPA's substantive provisions are aspirational rather than prescriptive, which makes the statute highly vulnerable to judicial narrowing. This Note argues that there was room in this case for a different interpretation, but admits that the Court's narrow interpretation was predictable given prior judicial reluctance to give force to NEPA's grand vision. Furthermore, NEPA turns out to be particularly weak in the trade context. This Note argues that we cannot ignore this statutory failure. The Note concludes with some proposed judicial and legislative solutions to both the specific problem of the truck pollution and the larger problems of statutory inadequacy. [ABSTRACT FROM AUTHOR]

The article presents judicial decisions that have caused confusion over the constitutional authority of the Environmental Protection Agency (EPA) in air pollution control in the U.S. The Supreme Court refused the review of U.S. v. Ohio Department of Highway Safety where the Sixth Circuit Court of Appeals ruled that EPA did not violate the tenth amendment in compelling Ohio to refuse title registrations. The Court showed little deference in FERC v. Mississippi to state sovereignty.

The article discusses the need for a federal agency to prepare for an Environmental Impact Statement (EIS) under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) in the U.S. Courts that interpret NEPA have not achieved a consensus on whether a federal agency might avoid the EIS requirement by changing a proposed project. It states that a federal agency typically contemplates action that might lead in important environmental impacts follows an administrative procedure.

The article discusses the Minnesota Supreme Court case Minnesota v. Clover Leaf Creamery Co. which deals with state packaging. The Minnesota Supreme Court affirmed the decision of the lower court on the grounds of equal protection, but did reach the issue of commerce clause. The U.S. Supreme Court granted certiorari in the case and upheld the restriction of the Minnesota legislature on containers of plastic milk against constitutional challenges.